FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 28, 2014
Elisabeth A. Shumaker
Clerk of Court
JAMES TOOLEY,
Plaintiff-Appellant,
v. No. 12-7050
(D.C. No. 6:11-CV-00110-KEW)
DAVID S. YOUNG, (E.D. Okla.)
Defendant-Appellee,
and
CITY OF KONAWA, OKLAHOMA,
Defendant.
ORDER AND JUDGMENT*
Before BRISCOE, Chief Judge, McKAY and O’BRIEN, Circuit Judges.
This is a false-arrest and excessive-force civil-rights case. James Tooley
appeals from a summary judgment entered in favor of Officer David S. Young and
denying reconsideration.1 We affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
BACKGROUND
On September 4, 2009, Young was working as a reserve police officer for the
City of Konawa, Oklahoma, when he “over heard officers Gary Whitson and David
K[naggs] advise central dispatch . . . they where [sic] on a traffic stop.” Aplt. App.,
Vol. 2 at 301. Young “could hear some type of distress in Officer Knaggs[’] voice.”
Id.
Young responded to the scene, where Whitson and Knaggs were speaking with
74 year old Tooley, who was seated in the rear seat of Whitson’s patrol car with his
hands handcuffed behind his back. Young was informed of the reason for Tooley’s
arrest: During the stop, Tooley had left his vehicle, approached Whitson, and despite
Whitson’s warning to get back into his vehicle or be arrested remained outside his
vehicle and responded, “Arrest me.” Id. at 367 (internal quotation marks omitted).
While Whitson was attempting to handcuff Tooley, Knaggs perceived Tooley as
resisting arrest and joined Whitson in securing Tooley in handcuffs.
At his deposition, Tooley testified to having been handcuffed for “[p]robably
five or ten minutes” when Young arrived. He was “holler[ing] at” the officers
because he had “lost circulation off of both arms.” Id., Vol. 1 at 142. Young took
Tooley out of the car. In the process Tooley hit his elbow on the car’s door jam.
Young then removed the handcuffs, asked for Tooley’s identification, and re-
handcuffed Tooley, this time with hands in front of his body. According to Tooley’s
1
Our jurisdiction derives from 28 U.S.C. § 1291.
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testimony “[Young] tried to be a gentleman when it come to that,” id. at 155, and
“[h]e was decent about that,” id. at 156. Tooley was then put back in Whitson’s
vehicle, but he gave conflicting testimony about which officer(s) were involved and
the amount of force used. At one point in his deposition, Tooley claimed he did not
recall which officer was involved “because it wasn’t eventful getting in that second
time.” Id., Vol. 2 at 383. But he also testified Young “wanted it done faster than
[his] body would want to react to it,” id., Vol. at 1 at 156, and Young “helped [him]
get bent up and shoved into the back seat,” id. at 162.
Tooley was taken to jail, charged with disobeying a lawful order and resisting
arrest, and treated for cuts on his wrists. After about an hour, he was released.
In March 2011, Tooley filed suit in state court against the City of Konawa,
Knaggs and Young.2 As a result of the defendants’ actions, he allegedly “suffered
painful and permanent injuries to his legs, hands, neck and back, for which he has
had, and continues to have medical treatment.” Id. at 84. The complaint contained
state law claims under the Oklahoma Government Tort Claims Act against the City of
Konawa and both federal claims under the Fourth Amendment and state law claims
against Knaggs and Young. The case was removed to federal court where Knaggs
was dismissed as a defendant because he was not served. Both the City of Konawa
and Young moved for summary judgment.
2
At the time of the lawsuit, Officer Whitson was deceased.
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The district judge entered summary judgment in favor of Young. He
concluded the federal claims against him were limited to unlawful arrest and
excessive force. As to the unlawful arrest claim, the judge determined Young did not
personally participate in the arrest and was justified in relying on the allegations of
resisting arrest made by Knaggs and Whitson. Regarding the excessive force claim,
the judge concluded Young did not use greater force than necessary and even if he
did, no reasonable officer in Young’s position would have known his acts might
amount to a violation of Tooley’s constitutional rights.
As all of the federal claims were resolved by summary judgment, the judge
declined to exercise supplemental jurisdiction over the remaining state law claims
against Young and the City of Konawa; he remanded those claims to state court and
declared the City’s summary judgment motion to be moot. Tooley unsuccessfully
sought reconsideration and then appealed for relief from this court.
DISCUSSION
I. Standards of Review
We review a grant of summary judgment on qualified immunity grounds de
novo, applying the same standard as the district court. Becker v. Bateman, 709 F.3d
1019, 1022 (10th Cir. 2013). Summary judgment is appropriate “if the movant shows
. . . there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). When a defendant raises
qualified immunity at summary judgment, the burden shifts to the plaintiff to show:
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“(1) the defendant violated a constitutional right and (2) the constitutional right was
clearly established.” Becker, 709 F.3d at 1022 (quotation omitted). The court has
discretion to address either prong first. Pearson v. Callahan, 555 U.S. 223, 236
(2009). In determining whether the plaintiff has met his burden of establishing a
clearly established constitutional violation, “we will construe the facts in the light
most favorable to the plaintiff as the nonmoving party.” Thomson v. Salt Lake Cnty.,
584 F.3d 1304, 1312 (10th Cir. 2009).
II. False Arrest
Tooley argues there was no justification for stopping his automobile or
arresting him following the stop. That argument is irrelevant because Young had
nothing to do with either the traffic stop or Tooley’s arrest. At his deposition Tooley
claimed Young “set [him] up” to be stopped, Aplt. App., Vol. 1 at 166, but the source
of the set-up claim was “local gossips,” and Tooley conceded he “can’t prove” the
set-up claim, id., Vol. 2 at 416. Tooley’s assertion that Young became involved in
the arrest simply by repositioning the handcuffs, taking his identification, and
returning him to the backseat of Whitson’s vehicle has no traction. An arrest occurs
“when, by means of physical force or a show of authority, an individual’s freedom of
movement is restrained.” Fogarty v. Gallegos, 523 F.3d 1147, 1155-56 (10th Cir.
2008) (brackets and internal quotation marks omitted). Tooley was arrested by
Whitson and Knaggs, not Young. Those officers restrained Tooley’s freedom of
movement by handcuffing him and placing him in the back of Whitson’s patrol car.
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An argument that Young is liable by having a hand in continuing the arrest,
needs more than Tooley has supplied. Young had been informed of the reason for the
arrest, and “[p]olice officers are entitled to rely upon information relayed to them by
other officers in determining whether there is reasonable suspicion to justify an
investigative detention or probable cause to arrest, as long as such reliance is
objectively reasonable,” Koch v. City of Del City, 660 F.3d 1228, 1240 (10th Cir.
2011) (internal quotation marks omitted). Tooley fails to identify any evidence
showing why Young should have disbelieved the reasons Whitson and Knaggs gave
for the arrest, and we have found none.
Young’s involvement in Tooley’s stop or arrest does not support Tooley’s
false arrest claim. He is entitled to the summary judgment entered in his favor. See
Henry v. Storey, 658 F.3d 1235, 1241 (10th Cir. 2011) (“[P]ersonal participation in
the specific constitutional violation complained of is essential.”).
III. Excessive Force
Tooley’s excessive force arguments are less than clear. He seems to be saying
any force employed by Young was necessarily excessive because his arrest was
unlawful. We’re not going for that. As we just explained, Tooley has no claim for
false arrest against Young. And even when an arrest is unlawful, a “court may not
automatically find any force used in effecting the unlawful arrest to be excessive.”
Romero v. Story, 672 F.3d 880, 890 (10th Cir. 2012). Moreover, the inquiry must be
defendant specific except when “all Defendants actively and jointly participated in
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the use of force” or the facts support “a failure-to-intervene theory.” Estate of
Booker v. Gomez, No. 12-1496, 2014 WL 929157, at *11 (10th Cir. Mar. 11, 2014).
Those exceptions do not apply here.3 Thus, we focus our inquiry on “the force used
[by Young] . . . [measured] against the force reasonably necessary to effect a lawful
arrest or detention under the circumstances of the case.” Id. (internal quotation
marks omitted). Further, to succeed on an excessive force claim, the plaintiff must
show an actual, non-de minimis injury. Koch, 660 F.3d at 1247-48.
Young’s acts were focused on relieving Tooley of discomfort, not imposing it.
Young did nothing more than remove Tooley from Whitson’s vehicle, reposition the
handcuffs to make them more tolerable, and put him back in the vehicle. According
to Tooley, Young was both a “gentleman” and “decent” when re-handcuffing him.
At most, Young bumped Tooley’s elbow while removing him from Whitson’s vehicle
3
Tooley’s rather undisciplined briefing indiscriminately mixes arguments and
theories. His brief touches on, but does not thoroughly analyze an oblique reference
to a state tort of failure-to-intervene. In §1983 law the doctrine imposes liability on
an officer who is aware of excessive force being used by other officers, is in a
position to intervene and does nothing. See Krout v. Goemmer, 583 F.3d 557, 565
(8th Cir. 2009); Torres-Rivera v. O’Neill-Cancel, 406 F.3d 43, 51-52 (1st Cir. 2005);
see, e.g., Fogarty v. Gallegos, 523 F.3d 1147, 1164 (10th Cir. 2008) (concluding that
supervising police officer had a “realistic opportunity” to prevent fellow officers’ use
of excessive force where the supervisor was present for the arrest, which “last[ed]
between three and five minutes,” and failed to intervene). Tooley’s near singular
focus is upon Young’s participation in his continued custody, which, as we have
explained, does not, alone, amount to excessive force. The only exception has to do
with Young’s conduct in repositioning the handcuffs to make it easier on Tooley and
then placing him back in the police vehicle. Tooley claims Young and another officer
jointly “stuffed” him back in the patrol vehicle. But he fails to detail evidence of
how the “stuffing” (regardless of who did it) amounts to excessive force or resulted
in sufficiently cognizable injuries to him.
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and then placed him back in the vehicle too rapidly. But Tooley offers neither an
argument regarding the reasonableness of Young’s force in removing him from
Whitson’s vehicle nor evidence of any injury to his elbow.
As for Tooley’s reinsertion into the vehicle, his account of the event is murky.
He testified both (1) getting back into Whitson’s vehicle “wasn’t eventful” and he
was not sure who put him there; and (2) Young bent him and shoved him into the
vehicle. Placing a detainee or arrestee in a patrol vehicle is necessarily incident to
most detentions and arrests. We will not infer a constitutional violation from routine
police activity. Cf. Graham v. Connor, 490 U.S. 386, 396 (1989) (“[T]he right to
make an arrest or investigatory stop necessarily carries with it the right to use some
degree of physical coercion or threat thereof to effect it.”); Becker, 709 F.3d at 1022
(noting plaintiffs bear the burden of showing a constitutional violation at the
qualified immunity stage of summary judgment). Probative evidence of unreasonable
force and resulting injury is required. Tooley offers nothing to show the extent of his
injuries upon being returned to the back seat of Whitson’s vehicle or the
unreasonableness of the force used to get him there.
Young did not violate Tooley’s right to be free from excessive force. Summary
judgment was appropriate.
IV. Reconsideration
The district judge denied reconsideration of the summary judgment because Tooley
merely reiterated his earlier arguments. He does not address the denial in his briefs;
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we deem the issue waived. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231
(10th Cir. 1990). In any event it was not an abuse of discretion. Muskrat v. Deer
Creek Pub. Sch., 715 F.3d 775, 789 (10th Cir. 2013).
AFFIRMED.
Entered for the Court:
Terrence L. O’Brien
Circuit Judge
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